Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

Document 347

Filed 12/11/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE and HEIDI ENSSLE WILSON Plaintiff(s), v. ILLINOIS TOOL WORKS, INC.; SAMES CORPORATION; BINKS RESEARCH & DEVELOPMENT CORPORATION; and JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets). Defendant(s). _____________________________________________________________________________ PLAINTIFFS' RESPONSE TO DEFENDANT ILLINOIS TOOL WORKS, INC.'S MOTION IN LIMINE TO EXCLUDE REFERENCE TO DAVID CLAYTON'S ALLEGED CONFLICT OF INTEREST (PACER 337) _____________________________________________________________________________ Plaintiffs Frieda E. Enssle, Burke E. Enssle and Heidi E. Wilson (the "Enssles"), through their undersigned counsel, submit the following response to Defendant Illinois Tool Works, Inc.'s ("ITW") motion in limine to exclude reference to David Clayton's alleged conflict of interest (Pacer 337). Plaintiffs object to all motions in limine filed by Illinois Tool Works, Inc., as being beyond the date set in the Trial Preparation Order dated January 29, 2004. 1. On November 22, 2005, ITW filed a motion for extension of time for certain trial preparation order deadlines (Pacer 328), including extension of the deadline to file motions in limine.

Case 1:03-cv-01291-MSK-CBS

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2. On November 23, 2005, before Plaintiffs had opportunity to respond to the motion, the court granted ITW's motion in part (Pacer 329), including allowing ITW to file motions in limine not later than November 30, 2005, 3. On November 29, 2005, Plaintiffs filed a motion for reconsideration of the court's order granting ITW's request for an extension of time to file motions in limine (Pacer 331). ITW knew or should have known of the existence of the Trial Preparation Order, at the very least because ITW knew of the court's civil practice standards, which state in part that the filing of motions in limine is governed by the Trial Preparation Order. 4. Plaintiffs' motion for reconsideration has not yet been ruled upon. 5. On November 30, 2005, ITW filed seven motions in limine (Pacer 333-339). 6. Plaintiffs hereby renew and preserve their request for the court to deny ITW an extension of time for filing any motions in limine, and thereby denying all said motions as untimely filed. Specific response to Pacer 337, Motion in limine to exclude reference to David Clayton's alleged conflict of interest. Summary The relationship of Mr. Clayton to Mr. Hunsperger and Mr. Hunsperger's prior involvement with the plaintiffs is proper cross-examination concerning the credibility of Mr. Clayton. 1. The Court's ruling denying Plaintiffs' motion in limine to exclude the testimony of David Clayton (Pacer 327) was for the purposes of the Rule 702 hearing. Order, paragraph (1).

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2. Plaintiffs are permitted to cross-examine Mr. Clayton at trial, if he testifies, on the subject matter of his testimony, as well as his credibility. Fed.R.Civ.P. 607. 611(b). 3. Plaintiffs are not revisiting the issue of exclusion of all Mr. Clayton's testimony based upon a conflict of interest. Plaintiffs intend to cross-examine Mr. Clayton on matters concerning his credibility, which include but are not limited to the facts and circumstances of Mr. Hunsperger's prior meetings with the Plaintiffs and what Mr. Hunsperger said to Mr. Clayton about the meetings with Plaintiffs, and when he said it to Mr. Clayton. 4. Cross-examination concerning credibility is not a waste of time, nor is it unfair to any party. The credibility of any witness is a proper subject for cross-examination and is certainly relevant to the matters at issue. 5. The Court order allows Plaintiffs to develop their case, including cross-examination of Mr. Clayton. Order at page 5. 6. The credibility and the weight to be given the testimony of any witness is a matter for determination for the jury. U.S. v. Davis, 473 F. 2d 1023, 1025 (10th: Cir. 1973) (citations omitted). 7. Mr. Hunsperger did not tell the truth in his statement filed in response to Plaintiffs' motion in limine. Response Exhibit 1 (Declaration of Daniel Burkhardt).

WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude reference to David Clayton's alleged conflict of interest.

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Respectfully submitted December 10, 2005. s/Peter Rogers Peter Rogers 885 Arapahoe Avenue Boulder, CO 80302 Telephone: 303-544-0997 Fax: 303-544-0998 [email protected] Attorney for Frieda E. Enssle, Burke E. Enssle, and Heidi E. Wilson

CERTIFICATE OF SERVICE I hereby certify that on December 10, 2005, a true and correct copy of the foregoing PLAINTIFFS' RESPONSE TO DEFENDANT ILLINOIS TOOL WORKS, INC.'S MOTION IN LIMINE TO EXCLUDE REFERENCE TO DAVID CLAYTON'S ALLEGED CONFLICT OF INTEREST (PACER 337) was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Susan E. Brice [email protected], [email protected] [email protected], [email protected] [email protected] [email protected], [email protected]

Angela Deborah DeVine Geraldine Elizabeth Flynn Asimakis Pascal Iatridis Robin R. Lunn

[email protected] [email protected], [email protected]

Kim Arquette Tomey

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And I hereby certify that I have mailed or served the document or paper by United States mail, first class, postage prepaid, addressed as follows: Asimakis P. Iatridis Berg, Hill, Greenleaf & Ruscitti LLP 1712 Pearl Street Boulder, CO 80302 Attorneys for Plaintiffs Burke E. Enssle 444 Millionaire Drive Boulder, CO 80302

s/ Peter Rogers Peter Rogers Attorney for Plaintiffs

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